An official watchdog has warned that the backlog of untried cases in the criminal justice system – a backlog which has ballooned during the Covid lockdown – could take a decade to clear.
The HM Crown Prosecution Service Inspectorate, which monitors the CPS (Crown Prosecution Service) says “radical solutions” are needed to deal with the delays caused by the lockdown, and cautions that those delays are likely to be “highly detrimental to justice”. It added that the problem may be “more complex than dealing with the immediate crisis”.
The report comes as justice secretary Robert Buckland is preparing emergency legislation which enables some trials to be temporarily conducted without a jury in order to circumnavigate problems of social distancing.
Criminal barristers in England and Wales have voiced strong opposition to the proposals and believe that larger, alternative venues should be hired as emergency “Nightingale courts” where jurors can be more easily accommodated.
Kevin McGinty, chief inspector of HM Crown Prosecution Service, says in the report: “The backlog of cases in the system is increasing daily. Cases that do come to court are taking hours or days longer than they would under normal circumstances. The challenges of social distancing and protecting those in the court environment cannot be underestimated.
“Court sittings and courtroom capacity with social distancing requirements will not allow for reduction of the existing backlog. Some estimates show that the current scale of increase in the backlog would take 10 years to clear at pre-pandemic rates. Any major increase in the time taken to hear cases is likely to be highly detrimental to justice.”
The HMCPSI report praises the CPS response to the crisis as well as the support given to staff during the crisis and the innovations to establish remote working for most staff almost “overnight”. It also notes that one member of the CPS died from Covid-19.
It went on to say: “Virtual courts have become the norm nationally, despite many years of pilots and local attempts having fallen by the wayside as the commitment of partners waned.”
Trial backlogs in magistrates increased by 41% between the beginning of March and the end of May, while in the crown court the increase was estimated to be 53%
Justice secretary Buckland has announced that 10 of these “Nightingale courts” are to be set up, dubbing them instead “Blackstone courts”, referencing the 18th-century judge and legal commentator William Blackstone.
Buckland has also said he is preparing legislation for crown courts to hear cases with seven rather than 12 jurors, a precedent set during the second world war. For less serious trials, the provision will be made for the cases to be heard without a jury, but rather with two magistrates sitting beside a judge, as is currently the case with appeals against sentence or conviction within magistrates courts.
The justice secretary has also suggested there could be extended court days in order to work through the backlog. Before the pandemic, the number of judicial sitting days had already been reduced in order to save money under austerity. Even before lockdown, the number of cases stood at 37,000.
The Criminal Bar Association said on Monday that more than 90% of its members would dismiss plans to scrap juries for middle-ranking offences.
Chair of the CBA, Caroline Goodwin QC, said: “The criminal bar has stood firm even in these impecunious times for criminal barristers. We have rejected the proposed idea of interfering with the 800-year-old principle of jury trials.
“Public confidence in law and order requires the ordinary public’s participation in criminal justice via juries. The notion of scrapping jury trials is an assault on justice, a blow to the common man.”
Simon Davis, president of the Law Society of England and Wales, said: “Going straight to extended working hours for already beleaguered judges, court staff and legal practitioners needs to be treated with utmost caution and, worse still, we should not be thinking about scrapping jury trials, even if only for some cases and on a temporary basis.”
The report by HMCPSI did not refer to prosecutions under the Coronavirus Act or emergency health regulations which the CPS admits were wrongly charged in some cases.
Neither did it investigate whether the lockdown had impacted the quality of justice. The organisation “Fair Trials” published a highly critical report based on the experience of defence lawyers, warning that they had not had private access to their clients to represent them effectively during the crisis.
